Prosecuting the Press

Never once in the history of the United States has the national government criminally prosecuted the press for publishing information the government would rather keep secret. In recent weeks, however, the Bush administration and its advocates, including Attorney General Alberto Gonzalez, have repeatedly threatened to prosecute the New York Times and the Washington Post for publishing their Pulitzer Prize-winning exposés of the administration’s secret prisons in Eastern Europe and secret NSA surveillance of American citizens.

Specifically, the President and some of his supporters have threatened to prosecute reporters and publishers for violating a provision of the 1917 Espionage Act, which provides in part that “whoever having unauthorized possession . . . of information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States . . . willfully communicates . . . the same to any person not entitled to receive it . . . is guilty of an offense punishable by 10 years in prison.”

For at least three reasons, such threats are largely empty ones. First, this provision was never intended to reach the press. When the Espionage Act of 1917 was initially proposed by President Woodrow Wilson, it included a section that would expressly have made it a crime for the press to publish information that the President had declared to be “of such character that it is or might be useful to the enemy.” Congress overwhelmingly rejected this proposal, with members of both parties characterizing it as “un-American” and as “an instrument of tyranny.” The provision of the 1917 Act invoked by the Attorney General Gonzalez was directed at enemy spies, not at reporters and newspapers attempting to inform the American people about the activities of their government. Unfortunately, the Bush administration appears not to know the difference.

Second, if the section of the 1917 Act applied to journalists, it would unquestionably violate the First Amendment. Laws regulating speech must be precisely tailored to prohibit only speech that may constitutionally be proscribed. This requirement addresses the concern that overbroad laws – laws that are not narrowly crafted – will chill the willingness of individuals to speak freely because of a fear that their expression might be unlawful. Not surprisingly, because the 1917 Act was drafted before the Supreme Court had ever interpreted the First Amendment, it does not incorporate any of the safeguards the Court has since held the First Amendment requires. For example, the Espionage Act provision is not limited only to publications that pose a “clear and present danger.” For this reason, any prosecution of the press under this section would be dismissed out-of-hand because the statute itself is unconstitutional.

Third, if Congress today enacted legislation incorporating the requirements of the First Amendment, it could not reach the exposés published by the New York Times and the Washington Post, for they were clearly protected by the First Amendment. Under existing law, such a statute would have to be limited to publications that (a) do not disclose information of legitimate and important public interest and (b) pose a clear and present danger of serious harm to the national security. The exposés of the Bush administration’s secret prisons and secret electronic surveillance of American citizens clearly concerned matters of legitimate and important public interest, and the administration has made no showing that these disclosures created a clear and present danger of serious harm to the national security. Thus, under a properly drawn statute these disclosures could not constitutionally be punished.

I do not mean to suggest, of course, that the government has no interest in keeping military secrets or that it may never punish the press for disclosing classified information. To the contrary, the government may take many steps to keep such information secret, including (in appropriate circumstances) firing and even criminally prosecuting public employees who unlawfully leak such information. Moreover, in narrowly-defined circumstances, the government may prosecute the press for disclosing classified national security information. Such a prosecution might be consistent with the First Amendment, for example, if a nationally-syndicated columnist intentionally discloses the identity of a covert CIA agent or if a newspaper reveals that the government has secretly broken an important al Qaeda code, where this disclosure causes al Qaeda to change its code. But the government can never punish the press for publishing information of legitimate and important public concern, and especially not when the information reveals possible government wrongdoing, as was true in both the secret prison and NSA situations. Such revelations are essential to effective self-governance and they are at the very core of the First Amendment.

Although the continuing threats of the Bush administration are largely bluster, they must nonetheless be taken seriously. They represent further steps in this administration’s relentless campaign to intimidate and control the press, and to keep the American people in the dark. This, in itself, poses a clear and present danger to our democracy.

Comments

[none]

Stone: "in narrowly-defined circumstances, the government may prosecute the press for disclosing classified national security information. Such a prosecution might be consistent with the First Amendment, for example, if a nationally-syndicated columnist intentionally discloses the identity of a covert CIA agent or if a newspaper reveals that the government has secretly broken an important al Qaeda code, where this disclosure causes al Qaeda to change its code. But the government can never punish the press for publishing information of legitimate and important public concern, and especially not when the information reveals possible government wrongdoing, as was true in both the secret prison and NSA situations."

Prof. Stone, could you provide a fuller distinction between the Plame leak and the NSA leak?

Plame and Wilson were both government employees. And it sure looks like Plame had something to do with her husband's appointment to take a (government) trip to Niger and write a (government) report on Iraq-Niger connections concerning Uranium.

Whether or not Plame's involvement was right or wrong, Wilson chose to make the trip and write the report. And subsequent details have seriously called to question the sincerity of his effort and the veracity of his report -- which would qualify as "government wrongdoing." (See, for instance, Hitchens, at slate.com, who points out Wilson's shoddy work and to whom Wilson has not replied.)

Thus, we have a government agent making an investigation and writing a report. That investigation and report became the subject of much debate and controversy (largely through the efforts of its author and the opposition party).

As such, was not it the press's "responsibility" to investigate the report, including its genesis? Did not that investigation lead to Plame? Did Novak not have a reportorial "duty" to reveal the peculiar circumstances leading to Wilson's appointment? Etc.

That Novak's publication of Plame's name may have endangered Plame may or may not be true, but how do we know that the exposure of the domestic spying program or the existence of foreign US prisons did not endanger particular people or people in the military or people in the US generally?

I tend to agree with you that the goverment probably should not and (legally, for whatever that's worth) cannot prosecute reporters. Go after the leakers instead. But, partisan politics aside, I see little basis for suggesting that Novak should be an exception to an otherwise broad prohibition.

[Marty Lederman]

Geoff: I wish I shared your confidence that the First Amendment would clearly prohibit application of the Espionage Act to the press's publication of classified "defense information" -- I certainly think that *should* be the case, and it probably *will* be the case if the SCOTUS ever reaches the issue -- but unfortunately as of right now it's not nearly as clear as you and I would wish, for at least three reasons.

First, of course, there's the fact that five or six Justices in the Pentagon Papers case (Burger, Harlan, Blackmun, White, Stewart and possibly Marshall) opined or suggested that post hoc criminal culpability against the Times would be permissible -- even where publication was as important as it was there. (Of course, such culpability was unlikely as a practical matter, because you'd have to find a prosecutor willing to charge and a jury willing to convict -- neither of which was likely, which is why the prior-restraint holding was so important.)

Second, you concede that there are likely some cases -- e.g., where "a nationally-syndicated columnist intentionally discloses the identity of a covert CIA agent or if a newspaper reveals that the government has secretly broken an important al Qaeda code, where this disclosure causes al Qaeda to change its code" -- where the courts would likely uphold convictions, presumably because of the particular sensitivity of the information (i.e., the immediate harms that are likely to occur). This concession tends to undermine your contention that "the government can *never* punish the press for publishing information of legitimate and important public concern." And it implicates not only statutes such as the Intelligence Identities Protection Act, but also the most troubling provision of the Espionage Act, section 798, which broadly prohibits and knowing and willful publication of any classified information "concerning the communication intelligence activities of the United States or any foreign government" -- a provision that on its face would appear to make the NYTimes' Risen/Lichtblau articles arguably criminal, save for any First Amendment limitations.

DOJ isn't stupid. If it ever prosecutes the press, it will be in the case of the naming of an agent, or revealing intelligence sources and methods: the settings in which the courts are least likely to be sympathetic to First Amendment arguments -- and in which the constitutional precedents therefore are most likely to be pro-prosecution.

The government is also likely to try to establish such precedents in cases *not* involving the mainstream press, where the motives of the "publishers" are far less sympathetic -- i.e., in the pending AIPAC proseccution, which could be a *very* big deal in terms of establishing precedent, if the government secures convictions and the constitutional defenses are rejected.

Third, the government's legal argument in these cases will probably not be so much that the publication itself creates a clear and present danger, but instead that a publication prohibition is necessary in order to make effective the prohibition on the *leaking* of the information in the first place. Drying up the market in order to prevent the antecedent illegal conduct, if you will -- analogous to the "child porn possession" theory of New York v. Ferber and the argument that the Court barely rejected in Bartnicki.

And, in that respect, it is difficult to overestimate the importance of the D.C. Circuit's decision in late March in Boehner v. McDermott, http://pacer.cadc.uscourts.gov/docs/common/opinions/200603/04-7203a.pdf. In that case, a divided panel substantially limited the effect of Bartnicki, by holding that if the recipient of information knows that it was unlawfully intercepted or conveyed by the source, the subsequent publication by the recipient can be sanctioned. (Judge Sentelle, dissenting, rightly questions whether that means Bartnicki itself should have come out the other way.) So, in that case, Rep. McDermott would be civilly liable for having conveyed a tape recording to the New York Times -- about matters of undoubted public importance -- where McDermott knew that the persons who conveyed the tape to him had intercepted the conversation unlawfully.

I believe a petition for rehearing en banc was recently filed. This is an *extremely* important case to keep an eye on.

Finally, one other important point: You suggest that the First Amendment would have special force in a case where "the information reveals possible government wrongdoing." I agree that in such a case, the courts will be most sympathetic to the constitutional argument. But there's no *doctrinal* basis for such a distinction, is there? That is -- I can't imagine the Court instantiating that instinct into doctrinal form. (Has it ever done so before?) What if the publication "merely" reveals disasterous policy decisions and/or duplicity (e.g., the Pentagon Papers), but not wrongdoing? Could such a case really be less constitutionally protected than the "revelation of *possible* wrongdoing" case?

Best,

Marty

[James]

"Under existing law, such a statute would have to be limited to publications that (a) do not disclose information of legitimate and important public interest and (b) pose a clear and present danger of serious harm to the national security."

I'm not sure that this test is a good one (I haven't taken Con Law, so I'm going by what I've read in this post).

The test reminds me of the Sony test for machines that enable copyright infringement. In that test, any significant non-infringing use will allow a product to pass muster. As Professor Picker has pointed out, that doesn't really balance the harms and benefits very well. Analagously, the mere fact that information is important and involves the public interest doesn't mean that it's a good idea for it to be published. The location of bin Laden, for instance, is certainly important and has implications for the public interest, but I would be very upset with anyone who published that information before his arrest, allowing him to escape.

I understand that A) the Constitution isn't always about striking the "right" balance from a cost-benefits point of view and B) there are other pressures besides legal ones to keep the press from misbehaving. Still, the test seems overly restrictive on the government's ability to keep information secret. It doesn't allow even the greatest threat to our safety to justify secrecy.

Perhaps I'm misreading the test, though, because under my reading if the government broke al Qaeda's codes, that would be important and it would involve the public interest. Sure, it would probably HURT the public interest in that particular case, but in general the public has an interest in knowing which security programs are worth funding and which aren't, etc.

[Bob]

As far as I understand, the Federal government can only try and punish for the following crimes:

1)Counterfeiting

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

2) Piracy and Felonies on the high seas

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

3) Treason

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The definition of treason is the offense of attempting to overthrow the government of one's country or of assisting its enemies in war.

Did the press commit any of these crimes?

[JohnLopresti]

In case you would like to review Senator Cornyn's questioning of Albert Gonzales on day one of the hearing in one of the above referenced matters; search on keyword 'inspector', as the senator discusses the Whistleblower Protection law with the attorney general
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/07/AR2006020700731.html.

[Bob]

John,

Your link doesn't work. Can you give me a backup?

[JohnLopresti]

Bob, The link works fine for me, though I note that website recognizes me, so it might be a cookies issue. You might try visiting Part I of the IV part hearing, then clicking thru Part II then Part III; the clickthru is at the bottom of each Part.

The Cornyn sequence begins about halfway thru the Washington Post's Part IV.

Here is the link to Part I: http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020600931.html

The way I manage these documents, as using Find on a webpage sometimes yields nil, is thru a careful cut and paste into a WordPad document, which is a no-frills way to archive text, and is searchable. Several questioners address the inspector general issue; indeed the attorney general introduces the topic in his opening remarks. But Cornyn's approach seems to resonate with Gonzales most lucidly.

I hope this helps.

[RL]

I am confused. If the espionage act was not intended to reach the media, and the first amendment protects the media if 1 and 2 below are true, then under what authority will the government be able to pursue the media if indeed it decides to publish the government’s deciphering of terrorist codes, ect? Also, why is that the disclosure of camps in Eastern Europe: 1) A legitimate public interest and 2) Not a serious harm to US interest, and the deciphering of terrorist codes is not a legitimate public interest and harms US interests more than the disclosure of secret camps?

[anon]

As to the last comment, the idea, presumably, is that the disclosure of an enemy cipher is harmful to US interests because it prevents us from gathering valuable intelligence (since the enemy will switch ciphers in response to the disclosure). It is not a legitimate public interest because surely anyone who thinks about it will realize that the US is gathering intelligence (that's not news), and there's no reason why the public need know the specifics of any codes that have been broken. In contrast, the revelation that we are using camps does not provide any aid to an enemy (unless they attack the camps based on intelligence gleaned from media reports, which seems possible but unlikely), but does provide the public with valuable information about the measures being employed in the "war on terror" that may not widely be known about.

[Kimball Corson]

Sure, why not? Just toss the press corp into prison as spies along with all who oppose this Administration who had the goods gotten on them by the domestic surveillance, so Bush and Cheney can better do want they want, all in the name of ‘fighting terrorism,’of course. This Administration clearly does not like either the First or the Fourth Amendment and if the liberals would just shut up, its popularity rating would rise and red states America could be happy again. What’s wrong with that? Hey, if Cheney shoots his friends, think what this Administration could do to its enemies.

[Kimball Corson]

P.S.

If we are really deemed an enemy, we just might get to spend some time on a Liberian freighter off the coast in the Bay of BAngal with some foreign guy in a uniform asking us questions. International cooperation, they call it.